DOES THE USE OF WOODCHIPPING MACHINERY TO DESTROY UNWANTED
LIVE CHICKENS VIOLATE CALIFORNIA LAW PROHIBITING CRUELTY TO ANIMALS?

Legislative Council of California to Honorable Paul Koretz
2176 State Capitol

July 31, 2003

CRUELTY TO ANIMALS: DESTRUCTION OF UNWANTED CHICKENS - Request
#13809

Dear Mr. Koretz:

You have asked whether the use of woodchipping machinery to destroy
unwanted live chickens violates California law prohibiting cruelty
to animals. According to information furnished to us by your office,
recently approximately 30,000 live, three- to four-pound hens were
destroyed in a woodchipper at two California egg ranches. Based
on the information you provided, for the purposes of this opinion
we assume that the incident in question involved spent hens. “Spent
hens” are defined in subdivision (b) of Section 1245.2 of
Title 3 of the California Code of Regulations as “older chicken
hens which are considered too unproductive to retain as egg-layers.”

Section 19501 of the Food and Agricultural Code requires certain
poultry to be rendered insensible to pain before slaughter by various
means that are rapid and effective. However, spent hens are specifically
excepted from this provision, and from the regulations respecting
the humane slaughter of poultry adopted by the Department of Food
and Agriculture pursuant to Section 19501.5 of the Food and Agricultural
Code (see Sec. 19501 F. & A.C; 3 Cal. Code Regs. 1245.1, 1245.2,
1245.4). Thus, the destruction of spent hens is not subject to the
requirements of Section 19501.

597. (a) .. . every person who maliciously and intentionally maims,
mutilates, tortures, or wounds a living animal, or maliciously and
intentionally kills an animal, is guilty of an offense punishable
by imprisonment in the state prison, or by a fine of not more than
twenty thousand dollars ($20,000), or by both the fine and imprisonment,
or, alternatively, by imprisonment in a county jail for not more
than one year, or by a fine of not more than twenty thousand dollars
($20,000), or by both the fine and imprisonment.

(b) . . . every person who overdrives, overloads, drives when overloaded,
overworks, tortures, torments, deprives of necessary sustenance,
drink, or shelter, cruelly beats, mutilates, or cruelly kills any
animal, or causes or procures any animal to be so overdriven, overloaded,
driven when overloaded, overworked, tortured, tormented, deprived
of necessary sustenance, drink, shelter, as to be cruelly beaten,
mutilated, or cruelly killed, and whoever having the charge or custody
of any animal, either as owner or otherwise, subjects any animal
to needless suffering, or inflicts unnecessary cruelty upon the
animal, or in any manner abuses any animal, or fails to provide
the animal with proper food, drink, or shelter or protection from
the weather, or who drives, rides, or otherwise uses the animal
when unfit for labor, is, for every such offense, guilty of a crime
punishable as a misdemeanor or as a felony or alternatively punishable
as a misdemeanor or a felony and by a fine of not more than twenty
thousand dollars ($20,000).
********************
For the purposes of Section 597, “torment,” “torture,”
and “cruelty” include “every act, omission or
neglect whereby unnecessary or unjustifiable physical pain or suffering
is caused or permitted” (Sec. 599b). Thus, Section 597 prohibits
malicious and intentional maiming, mutilation, torturing or wounding
of an animal, malicious and intentional killing of an animal, torturing,
tormenting, mutilating, or cruelly killing an animal, or subjecting
an animal to needless suffering, unnecessary cruelty, or abuse [Other
sections of the Penal Code prohibits various forms of cruelty to
animals . . . but none of these sections contains any provision
of specific applicability to the question presented.]

Birds fall within the statutory definition of “every dumb
creature” (Sec.599b) and thus qualify as “animals”
for purposes of animal cruelty statutes (People v. Baniqued 92000)
85 Cal.App.4th 13, 15-16). Section 597 is not limited to domestic
animals and, thus, applies generally to all animals (compare with
Sec. 598b, which prohibits the use of pets as food). Furthermore,
while the prohibitions contained in Section 597 do not interfere
with the right to kill animals used for food and certain other activities
(see Sec. 599c), there is no exception from these prohibitions for
euthanizing animals that previously laid eggs if the animals are
not to be used for food. In the absence of an exception, we address
the issue of whether Section 597 prohibits the use of woodchipping
machinery to destroy unwanted live chickens.

In People v. Speegle (1997) 53 Cal. App.4th 1405, 1411 (hereafter
Speegle), the court of appeal stated that, because there are “an
infinite number of ways” in which an animal could be subjected
to substandard treatment, the Legislature cannot catalogue every
violative act. Section 597 prohibits both active and passive infliction
of cruelty on animals (see Sec. 599b). In this case, the incident
in question was an intentional act. The majority of California cases
involving animal cruelty have involved passive infliction of cruelty
through the criminal neglect of animals. When active infliction
of cruelty was involved, the issue of what acts constitute animal
cruelty was not categorically addressed. In People v. Thomason (2000)
84 Cal.App.4th 1064, 105601066 (hereafter Thomason), the defendant
was charged with violation of subdivision (a) of Section 597 for
producing “crush videos” in which mice, rats, and newborn
mice were crushed and killed by a woman under the heel of her shoe.
On appeal, the appellant argued that Section 597 does not apply
to rodents because they may be killed an any time and by any means
under Section 599c, as they are a threat to health and property
and therefore excepted from subdivision (a) of Section 597. The
court of appeal held that Section 5401 of the Food and Agricultural
Code, Section 116125 of the Health and Safety Code, and Section
599c address the destruction of specific animals, those known to
pose a danger to life, limb, or property, under specific conditions,
on premises that are infested with any pest or on which any pest
is found (Id., at p. 1068). Further, the court held that, even if
it could be said that the rodents killed could be classified as
those covered by Section 599c, they may not be intentionally and
maliciously maimed, mutilated, or tortured to death for the purpose
of selling video tapes for commercial gain (Id., at pp. 1068-1070).
Thus, the court of appeal held in Thomason that animals that are
permitted to be killed pursuant to Section 599c may not be subjected
intentionally to needless suffering or unnecessary cruelty.

In our opinion, determining whether Section 597 has been violated
in any case and, thus, whether animal cruelty has occurred, will
depend on the facts presented in that case. Looking at other states,
the Supreme Court of Colorado addressed the issue of what constitutes
animal cruelty in a case involving an intentional act in Waters
v. The People (Colo. 1896) 46 P. 112 (hereafter Waters). The facts
of that case were that defendant, Waters, had released 40 live doves
from a trap for the purpose of using them as targets to shoot at
for sport and amusement; some of the doves were shot and killed
outright; and some of the doves were wounded, captured, and then
immediately killed. The Waters court, in reaching its conclusion
that the defendant violated the Colorado animal cruelty law, stated
as follows:

“Every act that causes pain and suffering to animals is not
prohibited. Where the end or object in view is reasonable and adequate,
the act resulting in pain is, in the sense of the statute, necessary
or justifiable, . . . Or where the act is done to protect life or
property, or to minister to some of the necessities of man. But
the killing of captive doves, as they are released from a trap,
merely to improve one’s skill of marksmanship, or for sport
and amusement, though there is no specific intention to inflict
pain or torture, is, within the meaning of this act, unnecessary
and unjustifiable. . . . and so the avowed object of this shooting
is neither adequate nor reasonable; hence, under this act, unjustifiable.
. . .” (Id., at p. 115.)

In reaching this decision, the court distinguished cases from other
states on the basis that, in the case before it, the actions resulted
in the mutilation of birds (Id., at p. 114) thereby inflicting pain
(Id., at p. 113).

The use of woodchippers has not been endorsed by the American Veterinary
Medical Association as an acceptable means of euthanasia for poultry
(Woodchippers not to be used to euthanize poultry, AVMA says: http://www.avma.org/onlnews/javma/juno3/0306old.asp
[6/30/03]). However, maceration in grinders specifically designed
for the disposal of poultry has been described as a humane method
for disposing of young chicks and embryonated eggs (Center for Animal
Welfare: Euthanasia of Poultry: http://animalwelfare.ucdavis.edu/publication/poultryeuth.html
[6/26/03]).

These views indicate that the determination of whether the incident
in question involves animal cruelty is a question of fact. We think
that a court or jury, in determining whether any particular act
constitutes animal cruelty, would consider numerous issues. For
example, how much pain was inflicted on the animals involved, and
for how long were they forced to endure this pain? Was the woodchipper
operating in an efficacious manner, and how exactly were the birds
destroyed upon entering the machine? Was the act prompted by agricultural
necessity? Did a disease quarantine, the condition of the birds,
or the stress, trauma, or injury that may have been caused to them
make transporting the flock to a commercial slaughterhouse or rendering
plant impossible or impractical? Were approved methods available
at the time that could have been used to destroy the flock at the
ranch, or at a commercial slaughterhouse or rendering plant?

To summarize, the use of woodchipping machinery to destroy unwanted
live chickens is neither specifically prohibited by the animal cruelty
laws nor authorized by the Food and Agricultural Code. Those laws
requiring the humane slaughter of poultry specifically except spent
hens (see Sec. 19501, F.&A.C.; 3 Cal. Code Regs. 1245.1, 1245.2,
1245.4). It is our opinion, however, that Section 597 of the Penal
Code prohibits the use of woodchipping machinery to destroy spent
hens if under the specific fact, as discussed above, the hens are
thereby deemed to be subjected intentionally to needless suffering
or unnecessary cruelty,
Very truly yours,
Diane F. Boyer-Vine
Legislative Counsel

By Krista M. Ferns
Deputy Legislative Counsel

[The opinion rendered in this document was solicited by the
Association of Veterinarians for Animal Rights (AVAR) through the
office of CA Assemblyman Paul Koretz. Info@AVAR.org]

United Poultry Concerns is a nonprofit organization that promotes
the compassionate and respectful treatment of domestic fowl. www.upc-online.org